KITAK MACHINERY ENGINEERING CO LTD v. FIGURE WELL LTD

HCMP 677/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 677 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ 768/2010)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1. In a clear and well reasoned judgment handed down on 28 January 2013, His Honour Judge Michael Wong gave judgment for the plaintiff in the sum of $505,879.64, being the defendant’s share of the depot expenses incurred in respect of a sub‑contract between the parties for the installation of gas pipelines. The judge rejected the defendant’s defence that its share of the depot expenses had been taken into account and fully and finally settled under a compromise agreement reached at a meeting held on 25 January 2008. The judge found, having heard conflicting oral evidence and considered contemporaneous documents, that at that meeting, no mention at all had been made of the depot expenses, which had therefore not been included under the compromise agreement. The judge further construed the terms of the sub‑contract and concluded that “depot”, the expenses thereof the parties were to share equally, included the site office set up and used by both parties for the purposes of the sub‑contract. The plaintiff was thus right in including the site office expenses as part of the depot expenses in calculating the defendant’s share of them.

2. The defendant bases this application for leave to appeal on attacks against the judge’s findings of fact relevant to what were or were not covered by the compromise agreement, as well as his construction of the sub‑contract relating to what depot expenses included.

3. We refuse leave to appeal.  For very good and well-known reasons, it is difficult to challenge a primary finding of fact in this court.  The present case is no exception.  The judge has heard oral evidence from the three participants of the meeting on 25 January 2008.  The plaintiff’s witness said that depot expenses were never mentioned at the meeting and the settlement figure was arrived at by going through a summary of accounts prepared by the plaintiff.  The defendant’s two witnesses who participated at the meeting said otherwise.  They said that the settlement figure was arrived at by using ballpark figures.  The depot expenses had been taken into account in the settlement figure.  The judge made his findings of fact after considering their oral evidence as well as the available documents, including two indisputably contemporaneous summaries, which supported the plaintiff’s version of events as well as the summary of accounts.

4. Despite the many factual points now made against the judge’s findings and reasoning, we are not persuaded that the judge lacked sufficient evidence before him entitling him to accept the plaintiff’s version of events and reject the defendant’s version.  We see no merits in the intended appeal on facts.

5. As regards the proper interpretation of the word “depot”, the judge, in our view, has correctly taken into account the relevant factual matrix in coming to his interpretation.  He has given clear reasons, based on the facts of the case, for his interpretation and we see no reason to differ from his conclusion.

6. For these reasons, the application for leave to appeal is refused with costs, which are summarily assessed at $30,000 – we take the view that the present application is essentially a repeat of the application for leave to appeal before the judge below, for which very substantial costs have already been incurred.  We also direct that the question of whether the costs of that application should also be summarily assessed be referred to the judge for his decision – the parties’ statements of costs having covered those costs as well.

7. We further order that no party may under Order 59, rule 2A(7) of the Rules of the High Court (Cap 4A) request our determination to be reconsidered at an oral hearing inter partes.